an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[Updates below.] Today a state trial court in Pennsylvania refused to enjoin that state’s new voter ID law. Barring something very unexpected, Pennsylvania voters will not be able to cast ballots on election day this November unless they show a government-issued ID with a photo and a (future) expiration date. The ruling is a huge disappointment to the civil rights groups challenging the statute, in part because in this case, unlike in the federal case from Indiana that the Supreme Court decided in 2008, the plaintiffs came prepared: they brought affidavits and testimony from numerous individual voters, such as lead plaintiffs Viviette Applewhite and Wilola Lee, who have voted for decades but will not be able to satisfy the requirements of the new law because they have no way to obtain the documents (birth certificate, etc) that Pennsylvania requires before it will issue a driver’s license. With evidence like that, why were the plaintiffs unable to obtain their preliminary injunction? One important factor, threaded through the opinion, was the possibility that most of the plaintiffs could in fact cast absentee ballots.
Absentee ballots have become something of an embarrassment for advocates on both sides of the voter ID debate, for very different reasons. Republican advocates of voter ID laws argue that the laws are needed to prevent fraud. But they concede, and all sides agree, that impersonation fraud at the polls—the only kind of fraud that voter ID laws would reduce—is incredibly rare in comparison to absentee ballot fraud, which crops up regularly in local election scandals around the country. The embarrassment arises because the last thing these Republican advocates want is new anti-fraud measures that would make absentee ballots harder for their own voters to cast. (They perceive that those who will be blocked by voter ID laws are disproportionately Democrats while absentee voters are more likely on their side.) The game is the same one we see here in Texas, where the Republican-dominated legislature passed a new, urgent voter ID law under which state-issued student IDs do not count, but concealed handgun permits do count. Or take Ohio, where Republican officials are apparently making sure there will be early voting in the evening and on weekends in Republican-dominated suburbs, but not in Democratic cities like Cincinnati or Cleveland. [*This has changed; see update below.] In other words, for partisans, the game here is all about partisan skew. The notable lack of Republican zeal for applying the same new standards to absentee ballots that they are imposing on in-person voting makes the game awfully obvious, which is why absentee ballots are an embarrassment.
For wholly different reasons, absentee ballots are also becoming something of an embarrassment for the civil rights groups and Democrats who oppose voter ID. The plaintiffs in Applewhite v. Pennsylvania face large, and in some cases frankly insurmountable, burdens that prevent them from obtaining the documents they need to get a Pennsylvania driver’s license. But almost all of these voters, the judge noted repeatedly, fall within one or more of the groups Pennsylvania law allows to cast an absentee ballot instead. As for the rest, there just aren’t that many of them, and the judge (in perhaps the most controversial part of the opinion) expressed sufficient confidence that Pennsylvania could get IDs to these individuals before the election under a special new program to justify not enjoining the law. The reasoning about absentee ballots draws on a brief, elliptical sentence in the Supreme Court’s Indiana voter ID case: “[A]lthough it may not be a completely acceptable alternative, the elderly in Indiana are able to vote absentee without presenting photo identification.” This sentence raises many questions. How would we decide whether the right to vote encompasses a right to vote in person, and not just by absentee ballot?
If we view voting essentially as an opportunity to add our chit to a tally, or to increase in a minuscule way the probability of victory of our chosen candidate, the absentee ballot alternative seems basically adequate. True, there are problems of timing: an in-person voter can vote on election day, whereas absentee ballots often must be sent considerably earlier (in Pennsylvania, you need to mail them about a week before the election since they must be received four days before election day to be counted). But this problem could be remedied by changing the law to accept absentee ballots postmarked by election day. With that change in place, voter ID opponents seem to have a problem. When one is trying to persuade a court that voters are being disenfranchised, it’s a tad inconvenient if actually they can cast ballots from home.
There can’t possibly be a right to cast a vote in person rather than by absentee ballot, full stop. If there were, then Oregon and Washington would be violating the rights of all their voters all the time. In those states, everybody is casting their ballot by mail; in that way everybody is equal. In contrast, where the state says to some of its citizens, “we do not trust you to vote in person; you will have to vote absentee or not at all,” the state is creating a second-class form of democratic citizenship. It is a form of citizenship that says you’re only allowed to come in through the back door.
One might call it “undocumented citizenship”: a limbo state in which a person is in fact a citizen, and is in no apparent danger of having that status questioned, but lacks the documents that would be her ticket to participate in the ordinary way—like everyone else—in the central ritual of our collective democratic life.
To appreciate why this matters, we need to understand voting as more than a means of affecting election outcomes. It is part of how the state enacts our inclusion as full and equal citizens.
There will be plenty said and written about the effect of the
Pennsylvania law on the presidential race; social scientists and others
will try to predict how many people will really be disenfranchised, and
Republican and Democratic strategists will pore over the numbers. But
something important is lost when we think about elections only in such instrumental terms.
The “undocumented citizens” are people like the plaintiffs in this suit -- people like
Wilola Lee, who has been trying for almost ten years to get a copy of her birth
certificate, but whose birth state of Georgia claims to have no record
of her birth and nothing for her. Or Gloria Cuttino, who cannot obtain
her birth certificate from South Carolina without paying $100 for census
records and then hiring a South Carolina attorney to petition a court
there. Or Joyce Block, who
cannot get a driver's license because her only record of her
marriage (and name change) is a marriage certificate in Hebrew. Or
Viviette Applewhite herself, now 93 and in a wheelchair, who testified
that she once marched for voting rights with Martin Luther King, Jr. She has her birth certificate, along with a Medicare card, a Social Security card,
and various other documents such as credit card statements and bills, like most of us do -- but she has no documents that the state
will accept because she was born Viviette Brooks and has no record
showing the change to Applewhite (which is the name on all her current documents and has been her name for much of her life). So she will not be able to vote in person in November.[*See update below.]
It ought to embarrass us all that so much of the legal, judicial, and popular conversation about photo IDs and voting is about which candidate will win, and so little of it is about the rights of people like these. The Pennsylvania court, like the Supreme Court, left open the possibility of future "as-applied" challenges to the law, but it remains to be seen whether such challenges will become a vehicle for vindicating the rights of enough people to make such litigation feasible. Because in truth, Viviette Applewhite, for all her forcefulness and resourcefulness, is unlikely to go hire her own lawyer just to win the right to vote at her regular polling place, along with everyone else, as their equal. She shouldn't have to.
*Friday 8/17: Two late updates:
1) Under "heavy criticism," the Republican Secretary of State in Ohio has come out for uniform statewide early voting rules, so that there will be a "level playing field" from county to county in Ohio, rather than allowing more voting in the suburbs and less in the cities -- a situation that made the game awfully obvious. However, the new uniform rule will involve no weekend voting anywhere. Guess which party that will help.
2) Thursday afternoon the Pennsylvania Department of Transportation issued Viviette Applewhite an ID, exercising its administrative discretion to relax certain requirements in her case. Applewhite's ACLU lawyer said in response that there are "thousands of Ms. Applewhites out there who still don't have ID. It would be nice if PennDot relaxed the rules for all of them." Posted
by Joseph Fishkin [link]